IN THE CASE OF:	  

		BOARD DATE:  10 May 2012

		DOCKET NUMBER:  AR20120003322 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests a General Officer Memorandum of Reprimand (GOMOR) be removed from his record or transferred to the restricted portion of his official military personnel file (OMPF). 

2.  He states the accusations referenced against him in the GOMOR are untrue.  The GOMOR was placed in his OMPF before final disposition of his case in the civilian court system.  When his case went to court, it was dismissed in the interest of justice.  Additionally, all financial issues referenced in the GOMOR were resolved long ago and his security clearance was reinstated.

3.  He provides:

* a self-authored memorandum
* his GOMOR and a related filing determination
* a memorandum, subject: Acknowledgment of Unfavorable Information
* the request he submitted to the Department of the Army Suitability Evaluation Board (DASEB) for removal of the GOMOR or transfer to the restricted portion of his record
* correspondence from the DASEB related to the denial of his request
* a Motion to Dismiss
* a Stress and Anger Management Workshop certificate
* a Joint Clearance Access Verification System (JCAVS) Person Summary
* two DA Forms 67-9 (Officer Evaluation Report (OER))


CONSIDERATION OF EVIDENCE:

1.  On 19 May 1992, the applicant enlisted in the Regular Army (RA).  On 16 April 2008, he was honorably discharged in the rank/grade of sergeant first class (SFC)/E-7 to accept a commission.  On 17 April 2008, he was commissioned as a second lieutenant/O-1, and he has served on active duty since that date.

2.  The performance portion of his OMPF contains a GOMOR, dated 18 November 2009, signed by Brigadier General (BG) G, Deputy Commanding General, Headquarters III Corps and Fort Hood, TX.  The GOMOR reprimanded him for exhibiting conduct unbecoming an officer.  It states:

* the imposing authority received a report that he assaulted his female roommate by slapping her, pushing her to the ground, and dragging her from their shared residence into the front yard
* the imposing authority had been told he began living with this woman before he was divorced from his spouse
* he had demonstrated an inability or unwillingness to meet his financial obligations

3.  The GOMOR stated that, by victimizing his female companion while intoxicated and enraged, he failed in his duty to act responsibly, exercise mature judgment, lead by example, and exhibit exemplary behavior.

4.  The GOMOR directed him to reflect on his conduct and take the necessary steps to control his anger and gain control of his personal affairs.

5.  BG G stated the GOMOR was an administrative measure and was not punishment imposed pursuant to the Uniform Code of Military Justice.  He was provided a copy of the GOMOR and the attached investigation, and advised that he could submit matters in rebuttal, extenuation, or mitigation within 10 calendar days.  He was further advised that failure to respond would be considered a waiver of this right.  BG G stated he would consider anything submitted before making his decision on filing the memorandum in his OMPF.  

6.  The investigation provided to the applicant as an attachment to his GOMOR is not available for review.

7.  On 4 December 2009, the applicant signed a memorandum, subject: Acknowledgment of Unfavorable Information.  He indicated he had received the GOMOR.  The memorandum provided two options regarding whether or not he intended to submit statements or documents in rebuttal, extenuation, or mitigation.  He initialed both options; however, he lined through his initials for the first option, indicating he did not intend to submit statements or documents in rebuttal, extenuation, or mitigation.  Both options advised him of his entitlement to seek legal advice.  By signing the memorandum, he further indicated he understood the GOMOR could be filed in his OMPF, local unit file, or both, at the direction of a general officer.

8.  His record includes an undated memorandum signed by BG G showing he considered the circumstances surrounding the reprimand.  He noted the applicant was given the opportunity to respond and elected not to do so.  BG G directed the GOMOR be filed permanently in the applicant's OMPF.

9.  The performance portion of his OMPF contains four DA Forms 67-9.

	a.  The DA Form 67-9 for the period ending 7 October 2009 shows the OER was referred to him and he elected not to make comments.  

		(1)  The form shows his rater marked "no" for integrity under the Army Values section of the form and marked "other" in the section for the rater's evaluation of his potential for promotion.  His rater stated his security clearance had been revoked, thereby preventing his eligibility for promotion to the next higher grade or his continued service as a commissioned officer.  

		(2)  His senior rater marked "other" in the section for the senior rater's evaluation of his potential for promotion.  His senior rater entered the following comments regarding his performance/potential:  "Average performance.  Although [the applicant] had potential to excel, he quickly reversed his potential when he lost his security clearance for failure to maintain financial responsibilities and later was arrested for domestic violence against a civilian lady who co-habitated [sic] with him.  I have disapproved his promotion to [first lieutenant (1LT)/O-1].  This officer has no future in our Army."

	b.  DA Forms 67-9 covering periods ending 7 October 2010 and 30 October 2011 show he received ratings of "outstanding performance must promote" and "best qualified."

	c.  A DA Form 67-9 for the period ending 7 February 2012 shows he received ratings of "satisfactory performance, promote" and "fully qualified."

10.  He was promoted to 1LT/O-1 effective 30 July 2010 by Order Number 
171-016, issued on 20 June 2011 by Headquarters, U.S. Army Human Resources Command, Fort Knox, KY.

11.  On 8 June 2011, the DASEB informed the applicant that there was insufficient evidence to justify removal of unfavorable information from his OMPF or transfer the unfavorable information to the restricted portion of his OMPF.  The DASEB Record of Proceedings shows the analyst assigned to the applicant's case noted the box for "the evidence is insufficient" was not selected in the Motion to Dismiss and that the phrase "in the interest of justice" could be "used for a variety of reasons to terminate the charge(s) against the appellant."  

12.  He provides:

	a.  A Motion to Dismiss, dated 19 January 2010, shows the County Attorney, Coryell County, TX, filed a motion to dismiss the charge against the applicant which included assault causing bodily injury-family violence (abbreviated in the motion as "ACBI-FV") in the interest of justice.  The presiding judge dismissed the charge.  

	b.  An undated certificate showing he completed a 6-hour stress and Anger Management Workshop at Fort Hood, TX.

	c.  A JCAVS Person Summary showing his security clearance was revoked on 25 August 2009 and reinstated on 30 July 2010.  

13.  In his self-authored memorandum, he states:

	a.  He did not submit a rebuttal to the GOMOR because he was unable to consult with counsel on the matter.  He knew he had not committed the crime he was accused of, but the court case had not yet been dismissed and he did not know how to prepare a rebuttal at that time.  The memorandum, subject: Acknowledgment of Unfavorable Information, he signed indicates his confusion.

	b.  His case was dismissed in the interest of justice by the Coryell County Court.  The DASEB found it significant that, in the Motion to Dismiss, the Coryell County Attorney checked the box for "in the interest of justice" rather than "the evidence is insufficient."  The DASEB failed to consider that it was unlikely the County Attorney would want to admit in a court document that he brought a case without sufficient evidence.  The Coryell County Clerk informed him the County Attorney always checks the box for "in the interest of justice."  He asks that the Board consider the fact that the allegations against him were unfounded and the case was dismissed.  This aspect of the GOMOR is untrue and unjust, and it should be removed from his OMPF under the provisions of Army Regulation 
600-37 (Unfavorable Information), paragraph 7-2a. 

	c.  The GOMOR incorrectly asserts he was intoxicated.  There is no basis for this statement, because he was not intoxicated.  

	d.  The GOMOR stated he was to take steps to control his anger, so he completed a 6-hour Stress and Anger Management Workshop.

	e.  All financial issues referenced in the GOMOR were resolved long ago and his security clearance was reinstated on 30 July 2010.

	f.  BG G stated he expected his future behavior to be exemplary.  He has taken this to heart, and his OERs reflect this.  He has been a successful 1LT since 30 July 2010 and he asks the Board to "clear up" his record so he can live up to the potential his chain of command sees in him.

	g.  Alternatively, in accordance with Army Regulation 600-37, paragraph 7-2b, he asks the GOMOR be moved to the restricted portion of his OMPF.  It is over 2 years old, and he has received two strong evaluations since it was filed.  The GOMOR has kept him from being promoted and its removal will allow him to continue his military career.  Since the imposition of the GOMOR, he has shown he has taken the reprimand to heart by performing and excelling at every task he has been given.

14.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.

	a.  The regulation provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements 


or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.

	b.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

	c.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

	d.  If an appeal is denied a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance record.  The appeal will be placed in the restricted section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The available records do not show evidence of error or injustice in the GOMOR the applicant received or the decision to file the GOMOR in the performance portion of his OMPF.  

2.  The record shows BG G had the results of an investigation upon which to base his decision to impose the GOMOR and make a filing decision.  Absent evidence showing otherwise, it must be presumed the GOMOR accurately summarizes the behavior for which it was imposed.

3.  The applicant states he did not submit a rebuttal to the GOMOR because he was unable to consult with counsel on the matter.  There is no evidence showing he was improperly denied the opportunity to seek legal counsel.  



4.  The acknowledgment memorandum he signed clearly stated his options.  If he felt strongly about his innocence with regard to some or all of the reasons for which he received the GOMOR it was in his best interest to submit statements or documents in rebuttal, extenuation, or mitigation.  

5.  His contention that he was confused when he completed the acknowledgement memorandum is questionable.  He was not new to the Army.  He had over 15 years of enlisted service in the RA prior to being commissioned, during which he achieved the senior enlisted rank/grade of SFC/E-7.  It seems likely he would have been perfectly aware of the implications of having a GOMOR filed in the performance portion of his OMPF and, had he been able to formulate a cogent rebuttal, would have done so.  

6.  The fact that a county court dismissed the charge against him is neither evidence of his innocence nor evidence that the GOMOR is inaccurate.  The standard of proof for conviction in a civilian court is not the same as that required to justify imposition of a GOMOR.  

7.  Since receiving the GOMOR, he has been promoted to 1LT, he has performed above standards during two of three rating periods, his security clearance has been restored, and he has completed a stress and anger management workshop.  However, this is insufficient to establish a basis for removal of the GOMOR from his OMPF or for transfer to the restricted portion of his OMPF.

8.  The record shows he engaged in behavior that was unbecoming an officer, and he did not exhibit the self-discipline one would reasonably expect from a Soldier with over 15 years of service.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X __  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20120003322



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ABCMR Record of Proceedings (cont)                                         AR20120003322



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